This past weekend, President Trump told a cheering crowd at the Conservative Political Action Conference that he would soon be issuing an executive order “requiring colleges and universities to support free speech if they want federal research dollars.” The announcement was prompted by a viral video of a conservative activist, Hayden Williams, being physically assaulted on the UC Berkeley campus. Williams was punched while recruiting students to start a new chapter of the conservative advocacy group, Turning Point USA, but neither Williams nor his assailant are Berkeley students. It is reasonable to question whether such an order is really needed—after all assault is already illegal. Trump agrees with the NRA when they argue that we should do a better job enforcing the laws we already have rather than creating new laws, so that logic should hold here as well.

Putting aside the need for the law, there is another pressing question. Would any such executive order be constitutional? The answer is complicated. There are two ways to challenge the constitutionality of a new law or executive order. The first is a “facial challenge.” That means going to court before a new law is applied to any real-life situation. The plaintiffs would have to argue that there are no circumstances under which the order could be constitutional. That’s a tough standard. If the executive order is drafted competently and clearly and protects free speech broadly, rather than in overtly partisan terms, the courts will probably uphold it against a facial constitutional challenge. In Rust v. Sullivan, for example, the Supreme Court upheld a federal regulation that required federally funded family planning clinics to refrain from abortion counseling. In National Endowment for the Arts v. Finley, the Supreme Court upheld a “decency” requirement for recipients of government arts funding. In short, the Supreme Court allows the government broad latitude to fund the activities it wants to fund and to defund those who engage in activities the government doesn’t want to support, even if those activities are within the scope of the first amendment. As a result, the government has far broader room to withhold funding for activities than to directly punish those activities.

Nonetheless, a court might well strike down an executive order, even in a facial challenge, on other grounds. As demonstrated by his recent declaration of a national emergency in order to procure funds for his border wall, Trump is famously unwilling to bow to the will of Congress. But, in this situation, Trump will be on stronger ground if he seeks legislation from Congress rather than just issuing an executive order. The President has no independent legislative power; that belongs to Congress alone. In the cases discussed above, the courts agreed that the executive branch was reasonably interpreting the laws that were providing the funding in the first place. So, the executive was merely implementing those laws in a new, but reasonable way, rather than adding new provisions to them. Because Trump’s announcement was so vague, we don’t know exactly what federal funding laws he will make use of for his executive order. But, when Trump has tried to impose his own ideological preferences in the guise of enforcing the law, courts have balked. For example, his executive order pulling federal funds from sanctuary cities was struck down by an appellate federal court. The court admonished Trump that: "By its plain terms, the executive order directs the agencies of the executive branch to withhold funds appropriated by Congress in order to further the administration's policy objective of punishing cities and counties that adopt so-called 'sanctuary' policies.” Similarly, a federal judge blocked the Trump administration’s attempt to limit women’s access to contraceptives because the new rules “were not in accordance” with the Affordable Care Act. So Trump can’t order federal agencies to, say, pull medical research funds from Berkeley for allowing student disruption of conservative speakers, unless he could show that this is a use of the money contemplated by Congress when it passed the funding bill or at least that it furthers the goals of the Congress that passed the funding bill.

Returning to the constitutional issues, there is a second way to challenge any executive order—one that is more likely to succeed than a facial challenge. There are also “as applied” challenges, in which the plaintiffs challenge the constitutionality of an executive order as applied to a particular situation. If Trump issues his executive order there are going to be a lot of these challenges, and universities will win a lot of them.

“As applied” challenges will be made, and will likely succeed when universities don’t want to host holocaust deniers, creationists, and racial cranks whose claims don’t meet academic standards of proof. There will be more suits when religious universities don’t want to host speakers like Bill Maher who are hostile to religious beliefs. There will be more suits still if the federal agencies that enforce the executive order use vague standards or demonstrate a partisan bias in their enforcement.

In sum, any executive that order Trump issues would quickly join the long queue of orders enjoined, limited, or struck down by the courts. These include his first two travel bans, the sanctuary city order mentioned above, and his executive order making it easier to fire federal employees. Campus free speech is a complex issue and, as I’ve previously posted, support for free speech by college students ought to be a lot stronger than it is. But a Trump-issued executive order is unlikely to improve the situation, and it will likely result in more litigation rather than more freedom of speech.

Evan Gerstmann is the author of Campus Sexual Assault: Constitutional Rights and Fundamental Fairness (Cambridge University 2019) and is a Professor of Political Science at Loyola Marymount Univ.